The criminal case against Donald Trump in the state of New York is a little complicated, but not so confusing that most people cannot follow it. The opening statements by the prosecution and defense lay out the issues rather clearly.
The prosecution’s opening statement
The prosecution explains that former President Donald Trump is indicted on 34 counts of falsifying business records. The Trump organization allegedly made 34 false entries on its books to cover up hush-money payments made by Michael Cohen to Stormy Daniels on behalf of Donald Trump.
The indictment claims that the records were falsified “with intent to defraud and intent to commit or conceal another crime and to aid and conceal the commission thereof…” The prosecution promises to show that another crime was indeed involved.
New York election law makes it illegal to conspire to promote or prevent the election of any candidate to office by unlawful means. The prosecution alleges that Donald Trump conspired with Michael Cohen and David Peck to “influence the presidential election by concealing negative information about Mr. Trump in order to help him get elected.” The unlawful means of doing so were the secret payments to Stormy Daniels and others to buy their silence. Although the opening statement refers to these as “illegal expenditures,” I did not see where it said exactly what made them illegal. I assume that at least one reason is that they were not properly reported as campaign contributions. Perhaps the prosecutors are leaving it to the judge to instruct the jury on the relevant law. Remember that Michael Cohen has already been prosecuted and imprisoned at the federal level for making an unlawful campaign contribution by paying Daniels.
The prosecution also maintains that the conspirators went to a lot of trouble to cover up the $130,000 payment to Stormy Daniels. Cohen borrowed the money from a bank and then funneled it through a shell company to pay Daniels. He and Allen Weisselberg, Trump’s Chief Financial Officer, arranged for Cohen to be paid back at least twice that amount, since he would have to pay federal, state and local taxes when he falsely reported the reimbursement as income. The actual calculation was $130,000 + $50,000 for an unrelated reimbursement = $180,000; then 2 times that = $360,000; then an additional $60,000 for an end-of-year bonus, for a total payment of $420,000. This was then divided into 12 monthly payments of $35,000 and billed as monthly legal services. Trump allegedly made most of the payments out of his own bank account. “The defendant said in his business records that he was paying Cohen for legal services pursuant to a retainer agreement. But, those were lies. There was no retainer agreement.”
The prosecution summarizes that “this was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected, through illegal expenditures, to silence people who had something bad to say about his behavior, using doctored corporate records and bank forms to conceal those payments along the way. It was election fraud. Pure and simple.”
The defense’s opening statement
The defense complains that the prosecutors talk about conspiracy without actually charging Trump with it. That is technically true. But they have charged him with falsifying business records in the first degree (a felony), and the prosecution needs to prove the criminal conspiracy to support that charge.
The defense denies that the $420,000 paid to Michael Cohen has anything to do with the $130,000 Cohen paid to Stormy Daniels. Trump is too frugal to overpay a reimbursement that way. The $420,000 is just what the organization says it is, a payment to Cohen for legal services. Trump had little involvement in it, since he only signed checks prepared for him by lower-level employees. “President Trump…had nothing to do with the invoice, with the check being generated, or with the entry on the ledger.”
The defense maintains that President Trump committed no other crimes either. “There is nothing wrong with trying to influence an election. It’s called democracy.” Also, “Entering into a non-disclosure agreement is perfectly legal…You will learn that companies do that all the time with some regularity.” The defense does not explain why Michael Cohen went to jail if what he did was perfectly legal.
Finally, the defense portrays Michael Cohen and Stormy Daniels as liars with axes to grind, so their testimony should be disregarded.
What to look for
As always in a criminal case, the burden of proof is entirely on the prosecution. The evidence must prove beyond a reasonable doubt that Trump participated in a criminal conspiracy by encouraging and approving illegal payments. It must also prove that he participated in the falsification of records by signing checks that he knew were not the compensation for legal fees they were claimed to be. Michael Cohen will no doubt testify to Trump’s involvement in these matters. Because the defense questions his credibility, the outcome of the case may depend on what corroborating evidence the prosecution can present.
The two sides disagree on the law as well as the facts—in particular, whether buying someone’s silence to protect a political candidate is legal. Look for the judge to clarify New York law in that respect in his instructions to the jury.
Beneath the Surface 